Enforcement, equanimity and an afterword – thoughts on sustaining fair pay for artists

Context

This text summarises three contemporary examples of schemes within Europe intended to improve the pay and terms for artists when showing in publicly-funded venues, indicating what considerations underpin the advocacy on artists’ pay and outlining a prior UK scheme as a comparator, suggesting reasons for its cessation. Sustaining each example of practice is dependent on two factors. Firstly, the widespread and continued acceptance of the principle and rigorous self-regulation within the sector, and secondly on gaining suitable levels of public subsidy to the visual arts. In view of this, three new financing options are briefly considered. An afterword asks whether the UK would benefit from thinking afresh about ways to suitably finance the arts - and thus artists’ contributions - in a political climate which is reducing the size of the state and subsidy to the public sector.

Three examples

• Four years ago, artists’ organisation Visual Artists Ireland established a framework for payment to artists across Ireland. This is fully endorsed by both of Ireland’s arts councils, falling within their policies and expectations for fair pay and equality. Dublin City Council was the first local authority to also adopt it. VAI’s regular surveys of the economic and artistic health of artists suggest that not all venues are currently meeting their financial obligations in respect of artists’ remuneration.

• In 2009, the Swedish government and artists’ organisations KRO/KIF forged an MU agreement which provides for payment to artists for display of work in the form of a kind of ‘rent’, this payable in addition to other kinds of costs an exhibition eg transport, installation and publication. The agreement expects all work the artist undertakes at exhibitions before, during and after the show to be governed by a written contract and remunerated outside the framework of the exhibition fee. The MU was updated in 2014. A report by the Swedish Policy Analysis Agency (kulturanalys) identified that 60% of artists who exhibited in smaller state museums either failed to get paid or received less than the agreement stipulates. There is currently no provision for levying penalties when the galleries concerned don’t pay or underpay exhibiting artists.

• A new draft exhibition fee framework and recommended rates was published by a-n The Artists Information Company in January 2016. The guidance which contributes to the Paying Artists Campaign follows consultations across the visual arts sector and desire to “develop a solution that works for everyone”. The framework and rates are supported by Arts Council England, within policies for diversity and equality. Implementation will be phased in, allowing galleries time to build up suitable budgets, with the first assessment of impact due in 2017. For a useful summary of all material and evidence in forwarding the principle of fair exhibition payment for artists showing in publicly-funded galleries across the UK see How we got here.

The above examples illustrate how bodies have formed their arguments on the broader grounds of supporting equality of opportunity and the specific right to receive compensation (or rent) for public access to artwork. A different approach has been taken in Canada, where artists’ representative association CARFAC first established an Artists fees system in 1977. Through an amendment to the Copyright Act in 1988, artists are provided with the legal right to be paid fees (compensation) when their work is exhibited public.

Comparator

In 1979 the (then) Arts Council of Great Britain implemented Payment to Artists for Exhibition of Work and established a standard fee and stated: “All revenue and project-funded organisations will be obliged to include costs of their estimate of exhibiting fees in their applications. Grants may be conditional on exhibiting fees being paid.” ACGB devolved the scheme to English regional arts associations in 1983 as a three-year trial. As the subsequent review couldn’t arrive at a common agreement, each association (and each arts council) created a version that reflected their own perspective and expectations.

Two factors led to the demise of this artists’ fees scheme, which was effectively defunct by 1999. Firstly, while galleries initially agreed to (and publicly stated) the level of fee paid to artists for solo and group exhibitions, there was resistance when the budget needed to cover this was devolved from funding bodies to the gallery’s own. Secondly, as funding agencies developed new policies their commitment to maintaining the principle of paying artists’ fees for public exhibitions was deprioritised.

In summary, in this particular instance the defining factor in establishing and maintaining exhibition payments to artists over a period of time can be directly attributed to the strong line adopted by the funding bodies. Their unequivocal requirement for ‘equity’ in the treatment of artists by galleries and the associated deep understanding of the symbiotic relationship between artists’ work and public access to it were highly influential amongst the portfolio of galleries they supported, and ensured that fees budgets were maintained at suitable levels. However, any policy in which is so highly dependent on the commitment of the funding body is at risk because new policies can supersede it.

Conditions for sustaining artists’ fees in budgets

In my three examples, the responsibility for compliance lies with professionals in the sector as neither funding body nor government mete out penalties. The detail of the exhibition arrangement and payment of fees to the artist remains a matter for artist and gallery. The underlying assumption is that both parties are fully aware of and endorse the terms of reference for artists’ remuneration, that they are both equally familiar with the processes of negotiation and that there is an inherent desire to achieve an outcome that works well for both parties – a win-win situation.

However, unless the artist is represented in such negotiations by a dealer, agent or mentor these optimum conditions are unlikely to be achieved. It’s possible that the evidence as noted in the examples from Ireland and Sweden, where artists have received less than the stipulated fees reflects this inherent imbalance in status. Because galleries mount exhibitions and commission artists on an ongoing basis, the staff are always likely to be more experienced in the negotiation process than the artist. Furthermore, as staff must consider the terms of reference for any individual exhibition within their broader exhibition programme and budget, they are more likely to know what terms they require from the detail of the arrangement, including the level of fees and other remunerations that will fit within their overall budget. In short, the resulting arrangement is likely to be more favourable to the gallery and its budget than to the artist’s circumstances and needs.

If there is a desire for a more even handed situation that creates equanimity within the sector rather than enforcement, how could this be achieved across the UK? The following options provide a brief exploration.

Option 1 – Enshrine the model agreement and fees stipulation in law.

Canada, where the obligation to pay artists’ fees has been enshrined in the Copyright Art could offer a model for the UK to emulate. Agreement would need also to be forged about the basis for uplifting fees annually and which agencies are given responsibility for researching, setting and promoting them.

An advantage is that a legally-binding term of reference is enforceable and maintains the key imperatives of the strategy regardless of the personal views or preferences of funders or other professionals in the visual arts sector including artists themselves. Note also that this was proposed as a solution to maintaining exhibition fees as a right (EPR) in a report commissioned by ACGB in 1988 from the (then) artists’ association as part of the implementation of the (now defunct) Payment to Artists for Exhibition of Work.

Option 2 – Protect artists’ fees within a designated collection agency

Artists’ fees budgets are inevitably in danger of being eroded in arts venues when there are strains on the overall budget when, for examples, trading under-performs, fundraising falls short and unforeseen costs occur in installation and operations. While the majority of items in venues’ budgets are ‘fixed’ – eg salaries and incremental scales are subject to employment law and contractual agreements govern overheads and service charges, budgets for fees to artists for exhibition and expenses are currently flexible, making this open to erosion when ‘balancing the budget’ is the imperative.

One way to prevent this is for a designated agency to enforce the payment by collecting up the artists’ fee budgets from publicly-funded venues and to subsequently distribute these fees to the contracted exhibiting artists. This is a variation on a proposal made to funders in 1996 by the (then) National Artists Association who proposed the setting up of a “centrally held EPR-fund, into which all galleries paid their annual allocation”.

An advantage would be prevention of erosion of the venues’ fees to artists’ budget during the year, thus minimising the underpayment to artists which was noted in two of the scheme examples. A designated agency might also be well-placed to fundraise from various sources to provide additional grants and funding schemes for artists. The NAA had in 1996 proposed this base budget was matched by the National Lottery.

Option 3 – create a pay policy that covers all visual arts salaries and fees

In 2006, Arts Council England’s Turning Point: the ten year strategy for the contemporary visual arts in England confirmed that the “contemporary visual arts sector is not meeting good standards in terms of pay and conditions…and [has a] low-paid workforce”.

While since that time unpaid internships for entry level posts have been recast as paid positions, there is no overarching pay policy for the visual arts sector. Each visual arts organisation appears to operate their own salary structure and pay scales. If the levels of fees to artists continue to be considered in isolation to a gallery’s other human resource costs there is a danger that the adjustments to salaried posts that are automatically related to career progression and higher experience levels as gained are not paralleled when the calculations are made about fees to artists.

The advantage of a pay policy that encompasses salaries as well as freelance rates (whether paid to artists or other specialists) is that it treats all who contribute to the success of a publicly-funded arts organisation equally. Thus judgements on for example performance-based pay increases or improvements in terms and conditions for all concerned would fall under regular compliance and good governance reviews. A pay policy could also contribute to benchmarking within the sector, providing both rationale and practical advice when arts organisations are under review and new ventures are being developed.

Afterword

A review of key literature about working conditions across the creative industries ranging from commercial industries such as television to publishing and advertising shows that a culture of low pay and less-than-favourable working conditions is now the norm. In parallel, government funding to the arts in the UK as a whole has declined considerably and may decline further under a political administration committed to reducing the size of the state in all aspects of public services. This climate permeates the discourse on improving the pay and conditions for artists when working in the publicly-funded visual arts.

Sharing a small cake (of visual arts funding) more equitably so that exhibiting artists receive a fairer share will inevitably be at the expense of something else an arts organisation might need spend their income on. This raises the question of whether – in parallel with strategies to make things better for artists – the arts sector could put their collective energies and minds to identifying new ways that might significantly enhance the levels of finance that are available to the arts.

Although referencing the USA’s situation, Michael Wilkerson has identified the difficulties for the arts when there are too many organisations dividing up available (or diminishing) funds, the inherent difficulties for many organisations of achieving a reliable donor base and how political will can adversely affect artistic experiment and risk. He argues that the arts need more, and stable funding whilst the entertainment industry as a whole is healthy. His hypothesis is to put a levy on all entertainment sales (arts and cultural ticketing, digital music and blank media, etc), in order to create a funding system that “costs the for-profit sector little but that generates significant resources for the non-profit sector”. There is some resonance in this respect with other suggestions of implementing a 'culture tax' in the UK.

Further reference

European Artists Rights – provides summaries of current artists’ exhibition fees schemes in Europe and elsewhere and of advocacy initiatives in Europe.

Louise, D (2015), Contextual information on the fees guidance provided by a-n (pay to view/free to a-n members) see www.a-n.co.uk/news/a-n-publishes-contextual-research-on-fees-guidance

Wilkerson, S, (2012) Using the Arts to Pay for the Arts: A Proposed New Public Funding Model, The Journal of Arts Management, Law and Society, 42, 103-115

Banks, M, Hesmondhalgh, D (2009), Looking for work in creative industries policy, International Journal of Cultural Policy, 15:5, 415-430

Hesmondhalgh, D, Baker S (2009), A very complicated version of freedom: Conditions and experiences of creative labour in three cultural industries, Poetics, 38(1), 4-20.